Major Copyright Trade Groups Oppose Some Proposed Exemptions Under DMCA Section 1201
Three trade associations filing as the Joint Creators and Copyright Owners (JCCO) asked the Copyright Office to oppose some of the office's proposed exemptions for Digital Millennium Copyright Act Section 1201, which prohibits the circumvention of technological protection measures. Parties filed comments Friday on proposed exemptions for 27 classes of goods under Section 1201, including the “jailbreaking” of video game consoles and specific cases for the circumvention of literary works. The comments by JCCO, which is made up of the Entertainment Software Association, the MPAA and the RIAA, were given to us in advance.
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It was the second round of comments within the CO's sixth triennial rulemaking process for Section 1201. The comments were limited to parties opposed to some of the proposed exemptions. Comments in favor of the exemptions were due Feb. 6 (see 1502110062). Comments by those who support or oppose specific proposals and neutral parties wishing to reply to other comments are due May 1.
“Today, it’s easier than ever to find the show or movie you want on almost any device you want, and that's a direct result of anti-hacking protections included in the DMCA,” an MPAA spokeswoman said. “These protections give content creators security, which in turn allows them to offer new and increasingly flexible downloading and streaming options that benefit consumers,” she emailed: “That’s why the existing framework is so important.” MPAA doesn't “oppose the renewal of any existing exemptions in this process, but we oppose these new or expanded exemptions that would put creative content at risk and limit the marketplace.”
Groups like the Electronic Frontier Foundation have criticized the technology protection measures in Section 1201, saying the law curbs consumer innovation (see 1501200062). Such groups believe the licensing of software, as opposed to ownership, disallows consumers from fixing or adding to software or electronics.
The exemption for jailbreaking video game consoles to use a different operating system or to prohibit the manufacturer’s monitoring of personal usage should be “rejected,” JCCO said. “Circumvention related to videogame consoles inevitably increases piracy and is detrimental to the secure and trustworthy innovative platforms that videogame publishers and consumers demand, and that have flourished partly as a result of the protection that technological protection measures provide,” it said. “Congress clearly intended to protect the right of consumers and developers to choose between competing styles of platforms,” JCCO said. Proponents of the exemption haven’t identified the “specific access controls that they wish to circumvent,” it said. “None of the proponents of this exemption conducted any analysis of the four fair use factors.” JCCO also opposed the exemption for jailbreaking smart TVs, while accepting the exemption for the circumvention of audiovisual works for primary and secondary schools.
The proposed exemption for the circumvention of electronic literary works to allow for the “‘noncommercial space-shifting or format-shifting,’” should be rejected in its “entirety,” JCCO said. “As the Register and the Librarian [of Congress] have concluded in the past, there is no basis under the law to conclude that back-up copying, format-shifting and space-shifting are fair uses,” it said. “The request should be denied because it does not relate to a noninfringing use,” JCCO said. “The proponents have not met -- and cannot meet -- their burden of showing that access controls are resulting in decreased access to copyrighted works such that access controls are adversely impacting consumers’ ability to access literary works on a variety of devices and platforms.”